A dozen prominent legal scholars submitted an amicus curiae brief on behalf of former vice-presidential aide I. Lewis “Scooter” Libby Thursday, arguing that Libby’s conviction could be overturned on appeal because the appointment of Special Counsel Patrick Fitzgerald raises serious constitutional issues involving the separation of powers. The legal scholars, including Harvard law professor Alan Dershowitz and conservative legal scholar and former Supreme Court nominee Robert Bork, say that “with no supervisor, [Fitzgerald] is too independent to make his supposed ‘superiors’ politically accountable for his actions” because the independent prosecutor could not be supervised by the executive branch short of being removed by the US Department of Justice.
US District Judge Reggie B. Walton [official website] is reviewing the brief and will decide whether to grant Libby bail pending Libby’s appeal.
In February 2006, Libby’s defense attorneys made similar arguments, saying that Fitzgerald’s appointment by the DOJ rather than by the president violated separation of powers doctrine. Walton rejected the argument, citing a 1988 Supreme Court opinion [Morrison v. Olson] which held that an independent counsel could still be considered an executive official despite not being under the direct control of the president because neither the legislative or judicial branch retain influence. Fitzgerald was appointed special counsel in 2003 by then-Deputy Attorney General James Comey pursuant to internal DOJ special council regulations.